The Supreme Court, 2010 Term William M. Jay July 2011.

The Supreme Court,2010 Term

William M. JayJuly 2011

The Supreme Court, 2009 Term

I. Overview of the Court’s work and workload this Term

II. Significant decisions

III. Questions on any and all aspects of the Term

Raw Numbers

• 77 cert petitions granted for merits hearing, plus 1 appeal and 1 original case

• 78 oral arguments

• 75 decisions after briefing and argument• Two split 4-4; two dismissed without opinion

• 48% unanimous• 20% 5-4 or 5-3• 31 recusals (28 Kagan, 2 Sotomayor, 1 Chief)

Source: ScotusBlog

Transitions

• Justice Kagan replaces Justice Stevens

Transitions

• Justice Kagan replaces Justice Stevens– Less track record than Justice Sotomayor on

many of the issues on the Court’s docket

Transitions


many of the issues on the Court’s docket– A fourth law professor

Transitions


many of the issues on the Court’s docket– A fourth law professor– Experience in the Executive Branch

Transitions


many of the issues on the Court’s docket– A fourth law professor– Experience in the Executive Branch– Experience at the lectern

Transitions


many of the issues on the Court’s docket– A fourth law professor– Experience in the Executive Branch– Experience at the lectern– 40 years younger than her predecessor

Transitions



• Retirement…

Transitions



• Retirement… of the Court librarian

Some Illustrative Cases

• Four free-speech cases• Ariz. Free Enterprise • Sorrell v. IMS Health

• Snyder v. Phelps • Brown v. EMA




• PreemptionChamber of Commerce v. Whiting





• Important criminal caseDavis v. United States





• Important criminal caseDavis v. United States

• Cases about the role of the courts

Arizona Free Enterprise Fund’sFreedom Club PAC v. Bennett

• Arizona offers public financing to qualifying candidates for state office– Initial lump sum (varies by office) (“X”)– Matching funds based on opponents’

fundraising or spending above X– Matching funds based on independent

groups’ spending on the election– Absolute cap: 3X

Arizona Free Enterprise

• Plaintiffs– Candidates who faced publicly funded

opponents– Independent groups who advertised against

publicly funded candidates or in favor of their opponents

• Plaintiffs alleged they had been chilled in their fundraising or spending


• Buckley v. Valeo (1976)– First Amendment protects unlimited spending– Public financing is constitutional

• Davis v. FEC (2008)– “Millionaire’s Amendment” to McCain-Feingold

• Self-funded candidate spends $350,000• Opponents’ contribution limits triple:

from $2300 to $6900 per donor• Opponents can accept coordinated contributions

from parties


• Davis v. FEC (2008)– Supreme Court holds, 5-4, that Millionaire’s

Amendment substantially burdened Davis’s exercise of his First Amendment right to fund his own campaign

– “Special and potentially significant burden”– Substantial burden → strict scrutiny– Leveling the playing field is not a compelling

(or valid) interest


• On the logic of Davis, district court strikes down Arizona matching-funds law

• Ninth Circuit disagrees and upholds the law– Matching funds create a disincentive like

disclosure requirements– Intermediate scrutiny– Anticorruption interest


5-4 for plaintiffs, per Chief Justice Roberts• Strict scrutiny applies

– Substantial burden, just like Davis• This subsidy is “in direct response to the political speech of

another, to allow the recipient to counter that speech”

– Worse than Davis, because no fundraising– Multiplier effect; effect on independent groups– Choice is “trigger matching funds, change your

message, or do not speak”– More speech only as a step to less speech


• Matching funds fail strict scrutiny– Leveling the playing field is “a dangerous

enterprise,” not a valid justification– Anticorruption interest is inadequate here

• Self-funders, independent groups pose no corruption risk

• Contribution limits already combat corruption• Encouraging participation in public financing is not a

sufficient justification given the burden it imposes


Justice Kagan dissents

• Public financing is constitutional– Matching funds are a way to find the “sweet

spot”

• No substantial burden– “Except in a world gone topsy-turvy, additional

campaign speech and electoral competition is not a First Amendment injury”

– Content-neutral subsidy; plaintiffs’ chutzpah


Justice Kagan dissents

• Davis is about a discriminatory restriction, not a nondiscriminatory subsidy

• Anticorruption interest– Nobody relies on “leveling”; 1 interest suffices– Buckley said that lump-sum public financing

fights corruption by getting people to decline contributions; this is just a fine-tuning of the lump-sum program


• For public financing, what now?– Matching funds appear to be dead

(as most courts had held after Davis but before the Ninth Circuit decision in Arizona Free Enterprise)

– Buckley still says the presidential (lump-sum) public-financing program is constitutional

• No “separation of campaign and state,” yet

– Multiplier-match for small contributions?

Sorrell v. IMS Health, Inc.

• Facts– Drug companies use “detailing”– Vermont statute regulates “prescriber-

identifying information.” Without consent:• Pharmacy can’t sell it (for marketing?)• Pharmacy can’t allow it to be used for marketing• Drug company can’t use it in marketing

– Drug companies and data miners both sue• Similar Maine and N.H. statutes upheld• Second Circuit strikes down Vermont’s


6-3 for plaintiffs, per Justice Kennedy

• Heightened scrutiny– Burdens disfavored speech (marketing) by

disfavored speakers (drug companies)– Not an incidental burden, like fair-housing

laws that prohibit “Whites Only” signs– Regulates speech, not just “access to

information” or “beef jerky”• It’s not the government’s information• The access restriction burdens speech


• Heightened scrutiny– The creation and dissemination of information

are speech– This content-based restriction is like a ban on

selling cookbooks, lab results, train schedules– Detailers can’t do their job (speech) without

this commodity (information); like banning a trade magazine from buying ink


• Heightened scrutiny… but what kind?– Restrictions on commercial speech get less

scrutiny than, e.g., restrictions on political speech

– But is a business’s disclosure or use of prescriber-identifying information always commercial?


• Heightened scrutiny… but what kind?– Restrictions on commercial speech get less

scrutiny than, e.g., restrictions on political speech

– But is a business’s disclosure or use of prescriber-identifying information always commercial?

• The Court doesn’t answer.


• Vermont statute fails intermediate (commercial-speech) scrutiny

• Protection of doctors’ privacy– Bogus because the information may be

disclosed to all but a narrow disfavored class– And although some content-based privacy

measures might be OK, here the content-discrimination has nothing to do with privacy


• Protection of doctors from harassment– So don’t let the drug rep into your office– “Many are those who must endure speech

they do not like, but that is a necessary cost of freedom”

• Protection of public health and fisc– Can’t be done by suppressing truthful, non-

misleading speech for fear people will listen


• What can the State do?– Fund its own counter-speech (“use generic

drugs, they’re cheaper and just as good”)– Regulate false and misleading speech (even

with content-based regulation)– Perhaps, regulate prescriber-identifying

information more tightly and evenhandedly


Justice Breyer dissents,

joined by Justices Ginsburg and Kagan

• No heightened scrutiny– This is just economic regulation (Glickman)– No restriction on what you may or must say– Drugs are heavily regulated (gov’t info)– If laws like this one must survive heightened

scrutiny, then judges and not legislatures will be making economic policy (Lochner)


• His bottom line– Where the government directs the collection

or retention of certain information, regulations on what may be done with that information need not pass heightened scrutiny

– “Content-based” or “speaker-based” doesn’t matter in the context of economic regulation; that’s how governments choose and implement policy


• Statute also survives heightened scrutiny– Letting detailers in the door, but restricting

their access to information, is a valid way to give doctors access to detailers’ information but still control prices and protect privacy

Snyder v. Phelps

• Facts– Lance Corporal Matthew Snyder, USMC, was

killed in Iraq in the line of duty– Members of Westboro Baptist Church

protested his funeral• Protest occurred 1,000 feet from church• Funeral procession passed within 200 feet;

LCpl Snyder’s father Albert saw tops of signs• Albert Snyder later saw signs on news• “Epic” posted on Internet

Snyder v. Phelps

• Snyder sued Westboro, Phelpses under Maryland tort law– Prevailed on claims of intentional infliction of

emotional distress, intrusion upon seclusion– Won $2.9M compensatory, $2.1M punitive– Lost on defamation, publicity of private life

• Fourth Circuit invalidated award under First Amendment, ordered judgment for defendants as a matter of law

Snyder v. Phelps

8-1 for Phelpses, per Chief Justice Roberts

• Speech was on a matter of public concern, at least in its “overall thrust and dominant theme”– Not an attack on the family in guise of speech

• Peacefully, in the traditional public forum– “had the right to be where they were”– “It was what Westboro said that exposed it to

tort damages”

Snyder v. Phelps

• IIED tort is itself problematic– “Malleable” and “subjective” (Hustler)

• “Captive audience” doctrine doesn’t justify treating seclusion tort differently– Albert Snyder wasn’t a captive audience

• States have other regulatory options

• “Our holding today is narrow.”

Snyder v. Phelps

Justice Alito dissents alone• Speech was mostly not on a matter of public

concern; the Snyders were private figures• Words can inflict injury; Phelpses “brutally

attacked Matthew Snyder”– “Neither classic ‘fighting words’ nor defamatory

statements are immunized when they occur in a public place, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder any differently.”

– “Special protection” at funerals?

Brown v. Entertainment Merchants Association (EMA)

• Facts– California prohibits sale or rental of violent

video games to minors• VVGs involve “killing, maiming, dismembering, or

sexually assaulting an image of a human being”• Phrased like an obscenity statute:

– “appeals to a deviant or morbid interest of minors” – “patently offensive” to community standards for minors– lacks “serious literary, artistic, political, or scientific value

for minors”

Brown v. EMA

• Video-game industry brings First Amendment suit– District court in northern California grants

permanent injunction– Ninth Circuit affirms– Consistent with rulings in 7th and 8th Circuits,

other district courts

• Supreme Court grants cert nonetheless

Brown v. EMA

7-2 for video-game manufacturers

(but only 5 votes for Justice Scalia’s opinion)

• Video games, in general, receive First Amendment protection– “It is difficult to distinguish politics from

entertainment, and dangerous to try”

• California’s statute is content-based– So ordinarily strict scrutiny would apply

Brown v. EMA

• Court rejects California’s argument that video-game violence is unprotected speech, like obscenity– Obscenity is not “whatever a legislature finds

shocking”; it’s only depictions of sex– Restrictions on the sale of obscenity to minors

do not receive strict scrutiny (Ginsberg), but violent video games are not obscene

• Restrictions on sale to minors only in “relatively narrow and well-defined circumstances”

Brown v. EMA

• No tradition of denying First Amendment protection to depictions of violence– At a minimum, “a long … tradition of

proscription” is required • Stevens – crush videos• The First Amendment strikes the balance

– California concedes no tradition for adults– Court concludes no tradition for minors, either

Brown v. EMA

• Examples of gore in juvenile entertainment• Snow White, Cinderella, Hansel & Gretel• The Odyssey and the Inferno• Lord of the Flies

• Examples of failed censorship attempts• Dime novels and “penny dreadfuls”• Movies• Radio dramas• Comic books

Brown v. EMA

• Video games are not materially different• Cultural and intellectual difference, but no

constitutional difference, between reading Dante and playing Mortal Kombat

• Video games are “interactive,” but choose-your-own-adventure novels have existed since 1969

• And in some ways, “all literature is interactive”

• Yeah, some video games are disgusting• But disgust is not a valid basis for restricting

expression. That’s the point of free speech.

Brown v. EMA

• So strict scrutiny applies

• Statute flunks strict scrutiny– “Wildly underinclusive”

• No greater effect on kids than Bugs Bunny, Road Runner, Sonic the Hedgehog, or a picture of a gun

• California does not restrict Saturday-morning cartoons or pictures of guns

• Underinclusiveness suggests pretext, censorship• And California lets kids have the games with adult

approval (even aunt or uncle)

Brown v. EMA

• Statute flunks strict scrutiny– Also overinclusive

• Some parents would let their kids have the games, but California prohibits selling those kids the games directly

• This is “only in support of what the State thinks parents ought to want”

– So although both ends (reduce youth violence, help parents) are legitimate, the statute doesn’t properly further them

Brown v. EMA

Justice Alito concurs in the judgment, joined by the Chief Justice

• Statute is invalid because it’s vague• Community standards of decency are well

established in the area of obscenity, but not in the area of depictions of violence

Brown v. EMA

• But Justice Alito disagrees with the Court’s analysis– Violent video games are different from the

other media that the Court has confronted• Realism approaching virtual reality• Player has unprecedented ability to participate• “In some of these games, the violence is

astounding.” And there may be “no antisocial theme too base” – ethnic cleansing, Columbine, Virginia Tech, JFK assassination, rape

Brown v. EMA

• But Justice Alito disagrees with the Court’s analysis– Violent video games are different from the

other media that the Court has confronted– So the Court should not dismiss so easily the

possibility that playing violent video games affects “at least some minors” in a way different from reading a book, listening to the radio, or watching a movie

Brown v. EMA

Justices Thomas and Breyer each dissent

• Justice Thomas: no right to speak directly to minors– Relies on the original public understanding of

the freedom of speech– “Speech to minor children bypassing their

parents” is unprotected speech• The founding generation believed parents had total

authority over their children, even what they read

Brown v. EMA

Justices Thomas and Breyer each dissent

• Justice Breyer: California had a sufficient basis to take action to protect minors– Strict scrutiny applies, but keep in mind that

the speech involved is speech to minors • “What sense does it make to forbid selling to a 13-

year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he … binds and gags the woman, then tortures and kills her?”

Brown v. EMA

– Scientific opinion is divided, but there is evidence that video games affect children

– The Court should defer to an elected legislature’s resolution of this scientific debate

– Majority’s remarkable footnote rejoinder• Because scientists are divided, State can’t prevail

Nev. Comm’n on Ethics v. Carrigan

• Voting on city council is not speech

• So punishment for conflict of interest doesn’t violate First Amendment

Chamber of Commerce v. Whiting

• Arizona regulates employment of aliens– One provision provides for revocation of any

“licenses” held by a business that knowingly employs an unauthorized alien

• Even articles of incorporation and the like

– Another requires every employer in Arizona to use E-Verify

• Business, civil rights groups sue

• Ninth Circuit upholds the statute


• Federal law forbids employers from hiring unauthorized aliens– Sanctions in federal tribunals– Corresponding civil-rights protections

• Federal law preempts any state or local law imposing sanctions on employers except for “licensing and similar laws”

• Federal law makes E-Verify “voluntary”


5-3 for Arizona, per Chief Justice Roberts

• Text says “licensing”; Arizona’s law affects only things that meet common definitions of “license”; Q.E.D.

• Text imposes no requirement that there be a federal adjudication first; Arizona has adequately adopted federal standards

• E-Verify is good; more is better


Justice Thomas concurs in the judgment

• He doesn’t believe in implied “purposes and objectives” preemption



joined by Justice Ginsburg

• In context, license means an employment-related license; it doesn’t mean articles of incorporation (“business death penalty”)

• E-Verify is supposed to be voluntary


Justice Sotomayor dissents

• Read the “licensing” savings clause against the backdrop of other federal law

• State may impose licensing sanctions only once a federal tribunal has found that an employer knowingly hired someone the federal government agrees is an unauthorized alien


Contrast with other recent preemption cases

• Williamson (Justice Breyer) – Motor vehicle safety standards) – Role of the agency)

• PLIVA (Justice Thomas) – Generic drug labeling– 5-4, with 4 votes to dispense with

presumption against preemption

Davis v. United States

• Facts– Davis was arrested, he was handcuffed, and

his car was searched incident to the arrest– Under 11th Circuit precedent, based on New

York v. Belton, the search was permissible– While his appeal was pending, Court decides

Arizona v. Gant, which disapproves 11th Circuit precedent on vehicle searches

– 11th Circuit okays search based on good faith


7-2 for prosecution, per Justice Alito

• Deterrence is the “sole purpose” of the exclusionary rule; no deterrent value, no suppression

• Knock-and-announce • Reliance on database• Reliance on state law • Reliance on warrant

• Here, officers acted in accordance with “binding circuit law”—“nonculpable, innocent”


• Retroactivity doctrine– Gant applies to Davis’s case as a potential

ground for relief, but that doesn’t mean he’s entitled to relief

• Court’s role in developing 4th Amendment law– Deterrence trumps– And the law will still develop


Justice Sotomayor concurs in the judgment

• Here, circuit law was very clear. Maybe a different rule would apply if the search had been in reliance on unsettled precedent.



joined by Justice Ginsburg

• Gant applies to Davis, under the rules governing retroactivity

• Therefore, Davis and those like him need a remedy for the unconstitutional search


• “Good faith” is a misnomer and good-faith exceptions are few; we regularly suppress even when the officer acts in “good faith”

• That’s because suppression is the often only remedy for an unreasonable search. In these cases, no suppression, no Fourth Amendment protection at all.

Cases about the Court’s role

• Standing

• “Lawmaking”

• Article III judicial power

• What unites these concepts? – To what extent does the Court preserve its

own ability to interpret the law? And in what areas does it step back in favor of other branches, or no one?


• Standing– Ariz. Christian Sch. Tuition Org. v. Winn

• $500 tax credit for contributions to STOs• 5-4, no taxpayer standing, per Justice Kennedy• Rule against taxpayer standing is based on

principle that matters of public concern, in which the plaintiff’s grievance is shared with millions of others, should be resolved through the political process

• Establishment Clause exception for spending• “Three pence only”


• Standing– Bond v. United States

• Claim that the Chemical Weapons Convention Implementation Act exceeds federal power

• Third Circuit holds that only a State can raise a Tenth Amendment claim

• “Federalism secures to citizens the liberties that derive from the diffusion of sovereign power”

• In a proper case, an individual can make that claim as well as a State – provided she has the ordinary elements of Article III standing


• “Lawmaking”– American Electric Power v. Connecticut

• Claim that greenhouse-gas emissions violate the federal common law of nuisance

• Court unanimously holds that the Clean Air Act has displaced any such judge-made law

– NASA v. Nelson• Background checks at Jet Propulsion Lab• Whatever right to informational privacy may exist,

these background checks don’t violate it


• Article III judicial power– Stern v. Marshall

• Did a bankruptcy court have power to enter final judgment on a state-law counterclaim by the bankrupt (Anna Nicole Smith) against her stepson?

• 5-4, per Chief Justice Roberts: No, under Article III of the Constitution. Congress may not withdraw from life-tenured Article III judges “any matter which, from its nature, is the subject of a suit at the common law, or in equity, or in admiralty”

• Dissenters see threat to administrative adjudication

Themes?

• A cautious Term in constitutional cases outside the First Amendment context

• Incremental decisions

• Some broad statutory and rule interpretation holdings

Other Highlights

• Confrontation: manhunts and crime labs

• Procedural barriers to postconviction DNA claims

• Police-created exigent circumstances

• Detention of a material witness

• Prison overcrowding

• Wal-Mart class action• Unconscionability of

arbitration clauses• Petition Clause• Personal jurisdiction• Right to counsel in

civil contempt• State sovereign

immunity• Attorney fees for

§1983 defendants

CRIMINAL CIVIL

Questions or feedback?

• [email protected]

The Supreme Court, 2010 Term William M. Jay July 2011.

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Transcript of The Supreme Court, 2010 Term William M. Jay July 2011.